Honing the Art of Appellate Advocacy
By Christopher J. Armstrong and Thomas J. Carey, Jr.
Published: Massachusetts Lawyers Weekly, December 28, 2009
Is there an art to appellate advocacy? We think so. We have some 90 years of law practice between us, mostly handling appeals, one of us pitching cases on appeal and trying to teach how to do it, and the other on the receiving end of countless pitches from innumerable lawyers.
Over the years, like other lawyers and judges, we've learned from our own mistakes and the mistakes of others. We have studied the appellate process from both sides of the bench and have formed definite views about how to succeed on appeal.
One of the country's greatest appellate advocates, John W. Davis, analogized the lawyer arguing an appeal to a fly-fisherman, angling to catch the attention of a fish. Disparaging his own ability to give the best advice on how to argue an appeal, he said:
"[S]upposing fishes had the gift of speech, who would listen to a fisherman's weary discourse on fly-casting, the shape and color of the fly, the size of the tackle, the length of the line, the merit of different rod-makers and all the other tiresome stuff that fishermen talk about, if the fish himself could be induced to give his views on the most effective methods of approach. For after all it is the fish that the angler is after and all his recondite learning is but the hopeful means to that end." ("The Argument of an Appeal," 26 ABA J. 895 (December 1940), reprinted in 3 J. App. Prac. & Process 745 (Fall 2001).)
With the thought that a joint venture between the fish and the angler might produce advice worth hearing, we are happy to undertake this series on appellate practice and will attempt to demystify the appellate process. We propose to cover everything a lawyer needs to know to succeed on appeal, from the fundamental principles of legal process that define the role of appellate courts to the pickiest detail of court rules that govern the format of briefs.
The better job counsel does on appeal, of course, the better the client's chances of success and the better the quality of justice in the commonwealth.
By presenting a well-briefed and well-argued case, the appellate advocate will also earn the respect and gratitude of the court and will enhance the reservoir of credibility that carries over from case to case throughout an advocate's career.
Those most in need of help probably won't read this column; after all, some of them don't even seem to read the court rules. But many lawyers who rarely handle appeals may want to keep up on the process, and advocacy skills are useful whether arguing a summary judgment motion on appeal or in the trial court.
We would be content even if we were preaching only to the choir, the people who love this work and are constantly seeking to improve, those who know that there is indeed an art to appellate advocacy and spend their careers trying to perfect it.
We hope that our readers will find these columns useful, and we welcome any of your questions, comments or suggestions.
Christopher J. Armstrong was an Appeals Court judge from 1972, when the court was created, until his retirement in 2008, and was chief justice from 2000 to 2006. During his tenure, he wrote more than 1,100 signed opinions. He is currently of counsel to Dwyer & Collora in Boston. Thomas J. Carey Jr. teaches appellate advocacy at Boston College Law School and leads the appellate practice group at Dwyer & Collora. The authors can be contacted at the firm at 617-371-1000 or by e-mail at tcarey@dwyercollora.com.